City of Walla Walla v. $401,333.44

• Decision Date: 06 October 2011
• Docket Number: No. 28887–1–III.,28887–1–III.
• Citation: 164 Wash.App. 236,262 P.3d 1239
• Parties: CITY OF WALLA WALLA, Respondent,v.$401,333.44, Defendant in rem,Adrian Ibarra–Raya, Appellant.
• Court: Washington Court of Appeals

164 Wash.App. 236

262 P.3d 1239

CITY OF WALLA WALLA, Respondent,

v.$401,333.44, Defendant in rem,Adrian Ibarra–Raya, Appellant.

No. 28887–1–III.

Court of Appeals of Washington, Division 3.

Oct. 6, 2011.

C. Dale Slack, Law Office of C. Dale Slack, Dayton, WA, Janelle Carman, Carman Law Office, Walla Walla, WA, for Appellant.Timothy J. Donaldson, Walla Walla City Attorney, Walla Walla, WA, for Respondent.SIDDOWAY, J.

[164 Wash.App. 242] ¶ 1 This appeal of a civil forfeiture proceeding is the third time that the defendant, $401,333.44 in cash discovered in a 2006 search by Walla Walla police officers, and Adrian Ibarra–Raya, who claims to be its owner, have been before us. In State v. Ibarra–Raya, 145 Wash.App. 516, 187 P.3d 301 (2008), we reversed Mr. Ibarra–Raya's controlled substances convictions. In City of Walla Walla v. $401,333.44, 150 Wash.App. 360, 208 P.3d 574 (2009), we reversed the trial court's order granting summary judgment forfeiting the cash to the city of Walla Walla (City). Following remand, the City prevailed at trial, resulting in this third appeal by Mr. Ibarra–Raya. ¹

¶ 2 We reject Mr. Ibarra–Raya's contentions that the trial court lacked subject matter jurisdiction and that the City should be judicially estopped to assert probable cause for commencing the forfeiture proceeding. We conclude that the findings and conclusions are insufficient for appellate review on the element of probable cause for statutory forfeiture. We need not remand for further findings on probable cause, however, because substantial untainted evidence supports the trial court's finding that Mr. Ibarra–Raya is not the rightful owner of the cash, which in turn supports its conclusion that he is not entitled to its return. We affirm.

PROCEDURAL BACKGROUND

¶ 3 On July 14, 2006, a narcotics officer with the Walla Walla police department obtained a search warrant and seized the $401,333.44 at issue from a residence at 1035 St. John Street, following the arrest of Mr. Ibarra–Raya at the home earlier in the morning. Mr. Ibarra–Raya had been arrested by officers responding to a noise complaint, who entered the home, saw the cash, and provided information relied upon for the search warrant.

¶ 4 Later in the day, the City initiated forfeiture proceedings against the money by issuing a notice of seizure and forfeiture. The notice was addressed to Mr. Ibarra–Raya at the 1035 St. John Street address and was personally served on him at the county jail. At about the same time, Mr. Ibarra–Raya was charged with possession of a controlled substance with intent to deliver (marijuana) and possession of a controlled substance (cocaine).

¶ 5 Mr. Ibarra–Raya requested a hearing in the forfeiture proceeding and removed it to superior court. He was convicted in November 2006 and appealed. Summary judgment of forfeiture was granted in favor of the City in May 2007. In Ibarra–Raya, we reversed his convictions because officers entered his home without a warrant or circumstances supporting the professed emergency exception to the warrant requirement and the evidence supporting his conviction should have been suppressed.

¶ 6 Having found the search unlawful in Ibarra–Raya, we held in $401,333.44, that the finding operated as collateral estoppel in the City's forfeiture action, and the exclusionary rule, which applies in forfeiture proceedings, precluded use of the illegally obtained evidence. $401,333.44, 150 Wash.App. at 365, 208 P.3d 574. We held that the seized money could be used for the limited purpose of establishing its existence and the court's in rem jurisdiction over it. Id. at 366, 208 P.3d 574 (quoting United States v. Six Hundred Thirty–Nine Thousand Five Hundred & Fifty–Eight Dollars ($639,558) in U.S. Currency, 293 U.S.App. D.C. 384, 387 n. 5, 955 F.2d 712 (1992)). We held that after otherwise excluding the illegally-obtained evidence, the evidence remaining did not support summary judgment in the City's favor. Id. at 369, 208 P.3d 574.

[164 Wash.App. 244] ¶ 7 Following remand, the court conducted a two-day bench trial and filed a letter opinion containing findings and its conclusions that the City had established its right to retain the $401,333.44 on both bases urged by the City: that the cash was subject to statutory forfeiture under RCW 69.50.505 and alternatively could be retained under CrR 2.3 because Mr. Ibarra–Raya was not its rightful owner. The City later presented more abbreviated findings and conclusions, which were entered by the court.

¶ 8 Mr. Ibarra–Raya argues on appeal that (1) the trial court lacked subject matter jurisdiction; (2) the trial court committed reversible error by refusing to apply judicial estoppel to bar the City's proof of probable cause; (3) the trial court erred by basing findings and conclusions on the amount of money seized; and (4) when considering only the evidence on which the trial court was entitled to rely, insufficient evidence exists to support the City's forfeiture claim. Br. of Appellant at 1–3.

ANALYSIS

¶ 9 Before examining Mr. Ibarra–Raya's assignments of error, it will be helpful to review the bases on which the City sought forfeiture of the cash and the elements it was required to prove. “ ‘[A] court may refuse to return seized property no longer needed for evidence only if (1) the defendant is not the rightful owner; (2) the property is contraband; or (3) the property is subject to forfeiture pursuant to statute.’ ” $401,333.44, 150 Wash.App. at 367, 208 P.3d 574 (alteration in original) (quoting State v. Alaway, 64 Wash.App. 796, 798, 828 P.2d 591, review denied, 119 Wash.2d 1016, 833 P.2d 1390 (1992)). The City relied for its entitlement to the cash on the first and third bases.

¶ 10 Forfeiture pursuant to statute. Among matters that can be at issue in determining whether property is “subject to forfeiture” under RCW 69.50.505 are whether the property qualifies as a type of property that can be seized (in this case, money or proceeds associated with controlled substances violations as described in RCW 69.50.505(1)(g)) and whether the property was seized for forfeiture in a lawful manner. RCW 69.50.505(2); State v. Clark, 68 Wash.App. 592, 607–08, 844 P.2d 1029 (1993), aff'd, 124 Wash.2d 90, 875 P.2d 613 (1994). Both were at issue in this case, although whether the property was seized in a lawful manner was the closer issue.

¶ 11 Property may be seized for forfeiture with process; the process required is a judicial writ. Tellevik v. 31641 W. Rutherford St., 120 Wash.2d 68, 78, 838 P.2d 111, 845 P.2d 1325 (1992). The writ can be issued ex parte but must be based upon affidavits demonstrating probable cause. Id. at 86–87, 838 P.2d 111, 845 P.2d 1325; Bruett v. 18328 11th Ave., N.E., 93 Wash.App. 290, 301–02, 968 P.2d 913 (1998). Probable cause requires the existence of reasonable grounds for suspicion supported by circumstances sufficiently strong to warrant a person of ordinary caution in the belief that the property was used or intended to be used in violation of the controlled substances act. Valerio v. Lacey Police Dep't, 110 Wash.App. 163, 176–77, 39 P.3d 332 (2002). Among lawful manners in which property may be seized for forfeiture by law enforcement without process are if the seizure is incident to an arrest or a search warrant, RCW 69.50.505(2)(a), or if a law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of the controlled substances act, RCW 69.50.505(2)(d). In this case, the City could not rely on its seizure incident to the search warrant found invalid in Ibarra–Raya, so its position in the forfeiture trial was that the seizure was supported by its probable cause to believe that the property was used or was intended to be used in violation of the controlled substances act, chapter 69.50 RCW. Br. of Resp't at 21–28, relying on RCW 69.50.505(2)(d).

¶ 12 When the existence of probable cause supporting a seizure without process is disputed, the agency must prove that probable cause existed at the time of the seizure. To prove probable cause, it may not rely on evidence obtained through discovery or postseizure investigation, even though it may rely on after-acquired evidence for other purposes. This is supported by the language of the statute, which provides, “Seizure of personal property without process may be made if ... [t]he ... law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter.” RCW 69.50.505(2)(d) (emphasis added). The power to order forfeiture is purely statutory and will be denied absent compliance with proper forfeiture procedure. Alaway, 64 Wash.App. at 801, 828 P.2d 591; Espinoza v. City of Everett, 87 Wash.App. 857, 872, 943 P.2d 387 (1997), review denied, 134 Wash.2d 1016, 958 P.2d 315 (1998). Forfeitures are not favored; they should be enforced only when within both the letter and the spirit of the law. Bruett, 93 Wash.App. at 295, 968 P.2d 913.

¶ 13 Reading the statute to require proof of probable cause existing at the time of seizure comports with the weight of authority interpreting parallel federal law, relied upon by Mr. Ibarra–Raya. Washington courts frequently look to federal civil forfeiture law to interpret our own. Guillen v. Contreras, 169 Wash.2d 769, 238 P.3d 1168 (2010). Prior to the adoption of the Civil Asset Forfeiture Reform Act of 2000, Pub.L. No. 106–185, 114 Stat. 202 (2000) (CAFRA), the trend of authority held that in proving probable cause for the institution of a forfeiture action, the government is limited to the evidence it had in its possession at the time it filed its forfeiture complaint. See, e.g., United States v. One Lot of U.S. Currency ($36,634), 103 F.3d 1048, 1054 (1st Cir.1997); United States v. $734,578.82 in U.S. Currency, 286 F.3d 641, 655 (3d Cir.2002); United States v. Ninety One Thousand Nine Hundred Sixty Dollars ($91,960.00), 897 F.2d...